Toward a Postmodern Theory of Law*
Ana Julia Bozo de Carmona
The work of a lawyer is commonly understood to consist of searching for and locating in the codes and laws the appropriate disposition to solve a case and apply the legal consequences anticipated by the norm to the situation in controversy.
To date, the philosophy of law produced and taught at universities in Venezuela and the rest of the world corresponds to that conceptualization. Philosophical-juridical problems such as concept of law, norm, validity, efficacy, etc.; the sources of law, the interpretation of legal texts, and many others have been approached from that enlightened or modern perspective. This perspective conceives law as the only system of norms legitimized to regulate human social conduct based on the legal conceptions of the world and of life reflected in positive dispositions.
This vision of law is a myth; it is extraordinarily powerful, but a myth, nonetheless. Such an affirmation is unreal, but not because law, far from being a complete and static system, is a dynamic system continually being created and modified. This condition of dynamism is already a commonplace in legal theory, yet its acceptance has not resulted in a de-mythification of law. Modification and permanent self-creation of the system of norms always and necessarily takes place according to the mechanisms and criteria of legal assessment included in the code of positive law.
The aforementioned vision is a myth because the concepts and ideas that we human beings use to make the world surrounding us intelligible and manageable have changed their content and lost their quality of ethical references that legitimize the law. I refer to such concepts as responsibility, liberty, authority, scientific knowledge, justice, right/wrong, etc..
The understanding (not definition) of such concepts and ideas is a necessary prerequisite for answering some crucial questions about the regulation of social conduct and the conflicts derived from it:
The formulation of answers to such questions and perplexities constitutes a challenge not yet resolutely accepted by those who study law and the legal phenomenon, those who are attempting an extensive revision of modern notions incapable of responding sensibly to the problems of our contemporary world.
This is not the moment to elaborate arguments that prove such an incapacity. In this author's opinion, it has already been demonstrated in academic and extra-academic efforts and discussions whose desperate attempts to provide answers are translated into written and verbal intellectual product, handled on the almost infinite information frame of our "web" culture (or culture of the information network). Nevertheless, I will illustrate this incapacity with a brief example:
Modern legal and political philosophy tend to emphasize the notions of identity (either individual identity in the liberal tradition or identity of the social group in the Marxist tradition), although one of the clearest and most outstanding aspects of our contemporary world is the erosion of traditional forms of personal and social identification: sex, class, race, trade union, the heterosexual family based on monogamy, etc.
Many, not to say the majority of individuals, function more efficiently outside of those traditional parameters of belonging and they resort to other criteria of identity ad hoc (still under construction) that are considerably more fluid.
We cannot base our decisions about how to act on notions of rationality or legitimacy associated with the notion of modern identity, because individuals and groups in our end-of-the-century society experience a high degree of instability in terms of their belonging to a class, an ethnic group, or even to a sex. These identifying contexts present themselves to us only as fragmented narratives, taken from the generation previous to ours.
Legal and political philosophy must accept the challenge of re-thinking the meaning of our actions which overlap in a multicultural social age that we, as individuals, must understand and reorganize.
Derrida, Rorty, Habermas, Lyotard, Deleuze, Guattary, MacIntyre, to mention only the most innovative thinkers in our discipline, insist on assuming the theoretical constructions of modernity just as they are given to us, with the purpose of criticizing them, but they remain incapable of or unwilling to conceive solutions that require adventuring much farther beyond the old paradigms.
The problems of legal rationality, of legitimate behavior, of desire, of responsibility, of individual and group identity, should be worked on accepting the fact that important processes of transformation are taking place in the social spectrum.
The history of law may be divided into two great periods:
1) Classical legal science characteristic of the ends of the eighteenth and beginnings of the nineteenth centuries. In the interests of simplification, we could call this the period of "universal reason" because all activity of production and application of the norms of law was based on the belief that such norms rested on universal, immutable principles that assured the rights of the individuals subject to them.
2) "Jurisprudence" of the twentieth century. We shall call this period "pragmatic". The dominant legal theory in this century has been instrumental: law is an instrument that assures the social order; its legitimacy rests on its capacity to serve a social purpose. Legal theory has failed, nonetheless, to define what those social purposes should be and to propose strategies through which they might be achieved. The most evident example of this failure is the breakdown of the Welfare State.
In this second block, one can discern various positions in the attempts to structure coherent explanations of what law is. The most recent trends show that we are experiencing a change of direction in legal thought: Law and Economy, CLS (Critical Legal Studies), Feminist Theory of Law, Law and Literature, Critical Racial Theory, etc..
In effect, scholars and practitioners of law seem interested in replacing traditional truths, transcendental values and neutral concepts of law with an explanation of law that is non-essentialist, plural and contextual and with a theory of decision-making immersed in a multicultural society.
At the end of the twentieth century we are forced to recognize:
The practice and theory of liberal law characteristic of modernity, are based on a concept of language that assumes words and concepts to be capable of capturing objectively the meaning of the events that law pretends to describe and control. Professional legal language uses such abstract categories as object/subject, law/society, substantive/adjective, etc. to construct rules of law that satisfy the legal requisites of generality and objectivity. Modern legal theory assumes that these representational dichotomies permit the legal system to produce neutral decisions utilizing the resource of legal interpretation.
Nevertheless, new developments in legal theory have produced a fragmentation or fracture in this representational model. It may be said that we are experiencing, in the legal ambit, "a crisis of representation," because the traditional canons of truth are fading away and explanations are arising that accept truth as a socially and contextually constructed discourse. The search for truth has become a process of social "performativity."
Diverse cultures compete for control of the system of norms and it is not clear if law can be defined as an order that is impersonal, universal or legitimate in this context of cultural division or diversity.
In the complex society of the end of the twentieth century, the criteria of rationality are dramatically diverse because they define distinct subgroups of the population, each one of which sees and thinks reality (and law) from its own perspective.
It is opportune to take advantage of this affirmation to justify the title and theme of this paper and answer the question: Why propose a postmodern theory of law that differs from theoretical-juridical positions rooted in the pragmatism of the twentieth century?
The reply is: the pragmatic point of view in legal theory conceives law as an instrumental process molded by extralegal factors such as history, economy, culture, etc.. Contextualization is a characteristic that legal pragmatism shares with the postmodern explanations of law, but pragmatism contextualizes law according to a homogeneous culture and society (western), while the postmodern point of view accepts and revindicates a world of irreducible cultural heterogeneity in which each one of us possesses very different bases for the knowledge of and the experience of life.
If law intends to maintain its role as a resource for social control, it should be studied and approached as such within the framework of legal theory.
We have argued that solutions to the problems of the heterogenous social order we share are not implicit in the formally elaborated rules and principles or in the logical-formal processes of the application of law. Legal theory cannot ignore this fact. It is necessary to work toward a drastic change in the contents of this philosophical-juridical subdiscipline.
My proposal is to work, from the point of view of Legal and Political Philosophy, on replacing legal justice with creative justice. The definition of this justice is a task still pending, nevertheless, a point of departure is already clear: creative justice is the justice of an active society, justice that assumes a turbulent world characterized by differentiation and vertiginous changes in social, technological and consequently, in ethical matters.
We need a "practical revolution" for an impractical profession: law. Such a revolution includes at least two requirements: 1) Reformulation of the formal categories with which jurists work in order to transform them into functional categories. 2) Development of an understanding of the social structure in which law operates. This implies taking into account contributions from other disciplines and sciences that might help solve social problems.
Legal theory needs to be rethought and reformulated. In this work, I will outline four directions toward which legal philosophy should direct its efforts and its reflection in order to complete that practical revolution in legal theory:
(*): This paper is an initial statement of the research project: Crisis in modern legal thought and the postmodern expressions of its reconstruction, financed by CONDES.
Bridges, Thomas. The Culture of Citizenship: Inventing Postmodern Civic Culture. Albany: State University of New York Press, 1991.
Babich, Babette, ed.. Continental and Postmodern Perspectives in the Philosophy of Sciences. Ipswich, UK: Ipswich Book Co. Ltd., 1995.
_______. Nietzsche's Philosophy of Science: Reflecting Science on the Ground of Art and Life. New York: State University of New York Press, 1994.
Douzinas, Costas. Postmodern Jurisprudence: The Law of Texts in the Texts of Law. New York: Routledge, 1991.
Farrel, Frank. Subjectivity, Realism and Postmodernism: The Recovery of the World. Cambridge: Cambridge University Press, 1994.
Fleischacker, Samuel. The Ethics of Culture. Ithaca, N. Y.: Cornell University Press, 1994.
Foucault, Michel. The Order of Things. New York: Pantheon Books, 1970.
Geuss, Raymond. The Idea of a Critical Theory: Habermas and the Frankfurt School. Cambridge, U.K.: Cambridge University Press, 1981.
Gutting, Gary De. The Cambridge Companion to Foucault. Cambridge, UK: The Cambridge University Press, 1994.
Horton, John and Mendus, Susan. After McIntyre, Critical perspectives on the work of Alasdair McIntyre. Indiana: University of Notre Dame Press, 1994.
Luckacs, Jonh. The End of the Twentieth Century and the Modern Age. New York: Ticknor & Fields, 1993.
Mann, Patricia. Micro-politics: Agency in a Postfeminist Era. Minneapolis: University of Minnesota Press, 1994.
Minda, Gary. Postmodern Legal Movements: Law and Jurisprudence at Century's End. New York: New York University Press, 1995.
Posner, Richard. Overcoming Law. Cambridge, Mass.: Harvard Univ. Press, 1995.
Raz, Joseph. Ethics in the Public Domain: Essays in the Morality of Law and Politics. Oxford: Clarendon Press, 1994.
Rehg, William. Insight and Solidarity: The Discourse Ethics of J. Habermas. Berkeley: University of California Press, 1994.
Rorty, Richard. Contingency, Irony and Solidarity. Cambridge, U.K.: Cambridge University Press, 1989.
_______. Philosophy and the Mirror of Nature. Princeton, N.J.: Princeton University Press, 1979.
Waluchow, W. J.. Inclusive Legal Positivism. Oxford: Clarendon Press, 1994.
Zimmerman, Michael. Contesting Earth's Future: Radical Ecology and Postmodernity. Berkeley: University of California Press, 1994.
Articles, Scientific Events
Epstein, Richard. "Legal Education and the Politics of Exclusion." Stanford Law Review 45 (1993).
Paterson, Dennis. "Postmodernism, Feminism, Law." Cornell Law Review 77 (1992).
Postmodernism and Law: A Symposium. University of Columbia Law Review (1991).
Symposium: Frontiers in Legal Thought. Duke Law Journal (1990).
Symposium: Legal Education. Michigan Law Review (1993).